* District Judge of the District of Maryland, sitting by

designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-8291

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

JOHN DEREK O'BRIEN,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Texas

(March 24, 1994)

Before HIGGINBOTHAM and WIENER, Circuit Ju dges, and KAUFMAN, *

District Judge.

HIGGINBOTHAM, Circuit Judge:

We conclude that John O'Brien's postconviction community

service did not justify a downward departure and remand for

resentencing.

I.

John O'Brien pled guilty in 1990 to charges of conspiracy and

possession with i ntent to distribute more than fifty marijuana

plants. 21 U.S.C. §§ 841(a)(1) & 846. The probation officer,

based on O'Brien's offense level of 22 and criminal history

category of I, calculated a Guideline sentence of 41 to 51 months

imprisonment, to be followed by three to five years' supervised2

release on both of the counts to which O'Brien pled guilt y. The

district judge granted a two-level reduction in the offense level

for acceptance of responsibility, lowering the prison term

recommended by the Guidelines to 33 to 41 months.

At O'Brien's 1990 sentenc i ng hearing, the district judge

departed downward from the Guidelines range, imposing a sentence of

12 months imprisonment and five years of supervised release. The

judge offered two reasons: that O'Brien had strong ties to the

community of Austin, Texas, including associations with charitable

groups in the Austin area, and that O'Brien was "basically a

worthwhile person." U nited States v. O'Brien

, 950 F.2d 969, 970-71

(5th Cir. 1991), cert. denied

,

___ U.S.

___, 113 S. Ct. 64 (1992).

O'Brien appealed his conviction, advancing a Fourth Amendment

challenge to the trial judge's denial of a motion to suppress. The

government appealed the downward departure. This court affirmed

O'Brien's conviction and vacated O'Brien's sentence, holding that

"the reasons proffered by the district judge were insufficient to

justify a downward departure." O 'Brien

, 950 F.2d at 970. S ee also

United States v. Pace , 955 F.2d 270 (5th Cir. 1992).

On remand for resentencing in March of 1993, the trial judge

departed downward even further. Again faced with a Guidelines

range of 33 to 41 months imprisonment, the judge imposed five years

of probation and no term of imprisonment. The judge's first

rationale was the extent of the defendant's community service since

conviction, which included musical performances worldwide,

organizing benefit shows for various social service and charitable1 To avoid any ex post facto problem with the application of

the Guidelines version in effect at O'Brien's resentencing, we

rely on the version in effect at the time of his offense. See

United States v. Clark , 8 F.3d 839, 844 (D.C. Cir. 1993). We

note that effective November 1, 1991 the Guidelines provide that

"civic, charitable, or public service . . . good works are not

ordinarily relevant in determining whether a sentence should be

outside the applicable guideline range." U.S.S.G. § 5H1.11.

3 organizations, and working in a music program in the Austin public

schools. The judge's second rationale was the "clearly atypical"

nature of the defendant's conduct. The government appeals the

judge's downward departure decision.

II.

The district court erred in departing downward bec ause of

O'Brien's post-co nviction community service. O'Brien engaged in

the type of community service that he did because of the skills he

developed as a professional musician. When writing the Guidelines,

the Sentencing Commission considered the effect on sentencing of a

defendant's professional skills and professional record using them.

See U.S.S.G. § 5H1.2 ( educational and vocational skills not

ordina rily relevant in determining whether a sentence should be

outside the guidelines); § 5H1.5 (employment record not ordinarily

relevant in determining whether a sentence should be outside the

guidelines). 1 The Commission's consideration of these factors

means they were not a permissible ground for departure. 18 U.S.C.

§ 3553(b); U.S.S.G. § 5K2.0.

O'Brien argues that his case does not involve a subjective

guess about his future behavior because he has established a solid

record of achievement in the time since his conviction. We reject4

this argument. A departure decision based on evidence about a

defendant's character, whether it relates to his character before

or after conviction, still tries to predict the defendant's future

behavior based upon his past actions. Such assessments of a

defendant's character are inconsistent with the Guidelines. See,

e.g.

, O'Brien

, 950 F.2d at 971 n.1; United States v. LaraVelasquez

, 919 F.2d 946, 954 (5th Cir. 1990) (no downward departure

for rehabi litative potential); O 'Brien

, 950 F.2d at 971; United

States v. Reed , 882 F.2d 147, 151 (5th Cir. 1989) (no downward

departure because of a defendant's "worth" or "good"). S ee

generally Lara-Velasquez

, 919 F.2d at 954; United States v. MejiaOrosc o , 867 F.2d 216, 218 (5th Cir.), c ert. denied

, 492 U.S. 924

(1989) (both noting Congress's goal in enacting the Guidelines of

ending sentencing based on subjective predictions ab out a

defendant's rehabilitative potential).

O'Brien argues that even if the Commission addressed the type

of behavior in which he engaged, it did not anticipate the extent

of his behavior. S ee 18 U.S. C. § 3553(b); U.S.S.G. § 5K2.0. We

find nothing in this case taking it out of the "`heartland' . . .

o f typical cases embodying the conduct that [the] guide line

describes ." U.S.S.G. ch. 1 pt. A § 4(b), at 1.6 (Introduction).

O'Brien has talent and the respect of many people, but so do many

professionals who come before the courts for sentencing. We see no

way to take O'Brien's case out of the "heartland" without drawing

subtle distinctions between the way O'Brien used his musical skills

and the way other professionals subject to sentencing have employed5

their talents. The Guidelines do not envision this kind of

subjective decisionmaking.

III.

The d istrict court also justified its departure because it

viewed O' Brien's criminal activity as "clearly atypical." In an

introductory sect ion of the Guidelines entitled "Probation and

Split Sentences," the Commission states that it "has not dealt with

single acts of aberrant behavior that still may justify probation

at higher offense levels through departures." U.S.S.G. Ch. 1, Pt.

A, intro. cmt. 4(d). This court has stated that "aberrant

behavior" requires more than an act which is merely a first offense

or "out of character" for the defendant, as the Guidelines take

those considerations into account in calc ulating the defendant's

criminal history category. U nited States v. Williams

, 974 F.2d 25,

26 (5th Cir. 1992). Aberrant behavior "generally contemplates a

spontaneous and seemingly thoughtless act rather than one which was

the result of substantial planning because an act which occurs

suddenly and is not the result of a continued reflective process is

one for which the defendant may be arguably less accountable." I d.

at 26-27 (quoting United States v. Ca rey , 895 F.2d 318, 325 (7th

Cir. 1990)).

O'Brien's conduct in this cas e does not qualify as a

"spontaneous and seemingly thoughtless" act. Law enforcement

officers several times witnessed O'Brien at a barn containing 796

growing marijuana plants and on the day they executed the search

warran t O'Brien was found on the property with a key to the6

entrance gate. A search of O'Brien's residence uncovered ledgers,

accounts, receipts, and $5,665 in cash.

O'Brien draws unpersuasive analogies to two cases from other

circuits. Unlike the defendant in U nited States v. Russell

, 870

F.2d 18 (1st Cir. 1989), and one of the defendants in United States

v. Takai

, 941 F.2d 738 (9th Cir. 1991), O'Bri en did not withdraw

from his criminal activity until arrested. And unlike the other

defendant found to have engaged in aberrant conduct in T akai

,

O'Brien maintained ongoing contact with the enterprise and its

operations. Cf. Takai , 941 F.2d at 743.

IV.

The parties brief the question whether we should reassign this

case to a different judge on remand. Mindful of the fact that this

case has appeared before us twice, we reman d to the same judge.

"The district judge will, we are confident, perform his duty. It

is unseemly for us to either assume that he will take a particular

course or to suggest what he should do so long as he reac hes his

decision in accordance with the controlling statute." U nited

S tates v. Denson , 603 F.2d 1143, 1149 (5th Cir. 1979). There is

much to be said for according district judges the power exercised

in this case. Many critics of the sentencing guidelines would

prefer to do so. But we have no choice but to apply the law as

directed by the Congress.

VACATED AND REMANDED